Filed 2/14/22 P. v. Maldonado CA2/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE MALDONADO,

Defendant and Appellant.

 B308783

 (Los Angeles County

 Super. Ct. No. PA045406)

APPEAL from an order of the Superior Court of 

Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.

Jonathan E. Demson, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill, Amanda V. Lopez and 

Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and 

Respondent.

——————————
2

The trial court summarily denied petitioner Rene 

Maldonado’s Penal Code section 1170.95 petition for 

resentencing.1 We previously affirmed the trial court’s order, and 

the Supreme Court vacated our opinion with directions to 

reconsider the appeal in light of Senate Bill No. 775.

2 As 

amended by Senate Bill No. 775, section 1170.95 now allows 

persons convicted of attempted murder to petition for 

resentencing. 

We again affirm the trial court’s order denying Maldonado’s 

resentencing petition. As a matter of law, Maldonado is ineligible 

for resentencing because he was not convicted of attempted 

murder based on felony murder, the natural and probable 

consequences doctrine, or any other theory under which malice 

was imputed to him based solely on his participation in a crime. 

(§ 1170.95, subd. (a).) Although the trial court should have 

appointed counsel to represent Maldonado, the error was not 

prejudicial. 

BACKGROUND

Maldonado, a member of the Pacoima Project Boys, 

attempted to kill Adam Smith, a member of the Pacoima 13

street gang, and Smith’s girlfriend. (People v. Maldonado

(Jan. 22, 2007, B18992) [nonpub. opn.] (Maldonado I).) A jury 

convicted Maldonado of two counts of attempted first degree 

murder and two counts of being a felon in possession of a firearm. 

(People v. Maldonado (July 30, 2019, B292272) [nonpub. opn.]

1 All statutory citations are to the Penal Code. 

2 Senate Bill No. 775 (2021–2022 Reg. Sess.) effective 

January 1, 2022, amended section 1170.95 by Statutes 2021, 

chapter 551, section 2 (Senate Bill No. 775).
3

(Maldonado II).) The jury found that the attempted murders 

were committed willfully, deliberately, and with premeditation,

and that a principal personally and intentionally used and 

discharged a firearm within the meaning of section 12022.53, 

subdivisions (b), (c), and (e)(1). (Ibid.) The jury also found that 

Maldonado committed his crimes for the benefit of a criminal 

street gang. (Ibid.) Maldonado admitted a prior serious or 

violent felony conviction and a prior conviction within the 

meaning of section 667.5, subdivision (b). (Ibid.)

Following Maldonado’s first appeal, this court reversed one 

conviction for being a felon in possession of a firearm. 

(Maldonado II, supra, B292272.) Following remand from 

Maldonado’s second appeal, the trial court struck the 

section 667.5, subdivision (b) enhancement. 

1. Petition for resentencing

On July 31, 2020, Maldonado filed a petition for 

resentencing pursuant to section 1170.95. Maldonado stated 

that he “was convicted of attempted murder under the aiding and 

abetting theory for vicarious liability of the actions of his 

co-defendant.” Maldonado also stated that he “was not the actual 

shooter” and that he was eligible for resentencing. Maldonado 

contended section 1170.95 permits resentencing on convictions of 

attempted murder. 

2. Order denying petition

The trial court denied Maldonado’s petition without 

appointing counsel and without holding a hearing. The court 

concluded Maldonado was ineligible for relief as a matter of law. 

The trial court explained that Maldonado’s criminal trial did not 

include theories of felony murder or natural and probable 
4

consequences. The trial court also reasoned that section 1170.95 

resentencing relief does not extend to convictions for attempted 

murder. 

DISCUSSION

A. Maldonado is Ineligible for Resentencing

To be convicted of murder, a jury must ordinarily find that 

the defendant acted with the requisite mental state, known as 

“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 

1181, quoting § 187, subd. (a).) Until recently, the felony murder 

rule provided an exception that made “a killing while committing 

certain felonies murder without the necessity of further 

examining the defendant’s mental state.” (Chun, at p. 1182.) 

Also, until recently, the natural and probable consequences 

doctrine permitted a “ ‘ “person who knowingly aids and abets 

[the] criminal conduct [of another person] is guilty of not only the 

intended crime . . . but also of any other crime the [other person] 

actually commits . . . that is a natural and probable consequence 

of the intended crime.” ’ [Citation.]” (People v. Chiu (2014) 

59 Cal.4th 155, 161; see also People v. Gentile (2020) 10 Cal.5th 

830, 845–846.)

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 

No. 1437), which became effective January 1, 2019, raised the 

level of culpability required for murder liability to be imposed 

under a felony murder or natural and probable consequences 

theory. (See Stats. 2018, ch. 1015, § 1, subd. (f).) The bill 

amended section 189, which defines the degrees of murder, to 

limit murder liability based on felony murder or a natural and 

probable consequences theory for a person who: (1) was the 

actual killer; (2) though not the actual killer, acted “with the 
5

intent to kill” and “aided, abetted, counseled, commanded, 

induced, solicited, requested, or assisted the actual killer” in the 

commission of first degree murder; or (3) was “a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of 

Section 190.2.” (§ 189, subd. (e).) 

Senate Bill No. 1437 also amended the definition of malice 

in section 188 to provide that “[m]alice shall not be imputed to a 

person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3).) In addition to amending sections 188 and 

189, the Legislature enacted section 1170.95. (Stats. 2018, 

ch. 1015, § 4, eff. Jan. 1, 2019.) That provision authorizes a 

person convicted of felony murder or murder under a natural and 

probable consequences theory to file with the sentencing court a 

petition to vacate the conviction and be resentenced. (§ 1170.95, 

subd. (a).) 

Under the amended version of section 1170.95, 

subdivision (a)(2), which became effective January 1, 2022, a 

defendant convicted of attempted murder may be eligible for 

resentencing relief. The amended statute permits persons 

convicted of “felony murder or murder under the natural and 

probable consequences doctrine or other theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime, attempted murder under the natural 

and probable consequences doctrine, or manslaughter” to file a 

petition for resentencing. (§ 1170.95, subd. (a).) 

Maldonado was not convicted based on a no longer viable 

theory of attempted murder. As Maldonado recognizes,there is

no crime of attempted felony murder. (People v. Billa (2003) 

31 Cal.4th 1064, 1071, fn. 4.) Although Maldonado argues that 
6

he could have been convicted based on a natural and probable 

consequences theory, the record does not support his contention. 

After giving the introductory instruction on aiding and 

abetting,3 the trial court instructed the jury that to convict 

Maldonado as an aider and abettor, the jury had to find 

Maldonado harbored the intent to aid and abet the attempted 

murders.4 The trial court did not instruct Maldonado’s jury with 

3 The trial court instructed the jury with CALCRIM 

No. 400 on general principles of aiding and abetting as follows: 

“A person may be guilty of a crime in two ways. One, he may 

have directly committed the crime. Two, he may have aided and 

abetted someone else, who committed the crime. In these 

instructions, I will call that other person the ‘perpetrator.’ A 

person is equally guilty of the crime whether he committed it 

personally or aided and abetted the perpetrator who committed 

it. 

“Under some specific circumstances, if the evidence 

establishes aiding and abetting of one crime, a person may also 

be found guilty of other crimes that occurred during the 

commission of the first crime.” 

4 The trial court instructed the jury with CALCRIM 

No. 401 as follows: “To prove that the defendant is guilty of a 

crime based on aiding and abetting that crime, the People must 

prove that:

“1. The perpetrator committed the crime;

“2. The defendant knew that the perpetrator intended to 

commit the crime;

“3. Before or during the commission of the crime, the 

defendant intended to aid and abet the perpetrator in committing 

the crime;

“AND
7

CALCRIM Nos. 402 and 403, which define the natural and 

probable consequences doctrine and identify target and nontarget 

offenses. 

Maldonado correctly points out that the instruction 

introducing aiding and abetting contains the following language: 

“Under some specific circumstances, if the evidence establishes 

aiding and abetting of one crime, a person may also be found 

guilty of other crimes that occurred during the commission of the 

first crime.” That language, however, was irrelevant to his case 

because the trial court did not instruct the jury on the natural 

and probable consequences theory of aiding and abetting. The 

instructions, taken as a whole, simply did not permit the jury to 

find Maldonado guilty on a theory of natural and probable 

consequences because the trial court instructed the jury that it 

could not convict Maldonado as an aider and abettor unless the 

jury concluded that Maldonado shared the perpetrator’s intent. 

Another instruction required the People prove beyond a 

reasonable doubt that “[w]hen the defendant acted” he acted with 

malice aforethought. The court further instructed the jury that 

malice aforethought required intent to kill. 

Because Maldonado was convicted based on his own state 

of mind, not on any theory of imputed malice, his conviction 

remains valid despite changes to sections 188 and 189. 

“4. The defendant’s words or conduct did in fact aid and 

abet the perpetrator’s commission of the crime.

“Someone aids and abets a crime if he knows of the 

perpetrator’s unlawful purpose and he specifically intends to, and 

does in fact, aid, facilitate, promote, encourage, or instigate the 

perpetrator’s commission of that crime.” 
8

Maldonado is ineligible for resentencing under section 1170.95 as 

a matter of law. 

Maldonado’s reliance on People v. Langi (Jan. 12, 2022, 

A160262) [2022 WL 110250] for the proposition that he may be 

eligible for resentencing is misplaced. In Langi, the jury 

instructions permitted the jury to find the defendant guilty of 

second degree murder as an aider and abettor even if the aider 

and abettor did not know “the act he aided was life-threatening, 

or that he must himself have acted with indifference to human 

life.” (Id. at p. *5.) In contrast, in this case, as we have 

explained,the instructions required the jury to find Maldonado 

harbored the intent to aid and abet the attempted murders. 

Additionally, to convict Maldonado of attempted murder,the jury 

was required to find he “intended to kill” and that he acted with 

express malice. This case did not include the instructions 

challenged in Langi. 

B. The Error in Not Appointing Counsel to Represent 

Maldonado Was Harmless

After the first appeal from the petition for resentencing,

our high court decided People v. Lewis (2021) 11 Cal.5th 952, 957, 

in which it held that petitioners are “entitled to the appointment 

of counsel upon the filing of a facially sufficient petition . . . .” 

Lewis further held that the error in failing to appoint counsel 

constitutes state law error and should be tested for 

prejudice under People v. Watson (1956) 46 Cal.2d 818. (Lewis, 

at pp. 957–958.) Under this standard of prejudice, Maldonado “

‘has the burden of showing “it is reasonably probable that if 

[he . . . ] had been afforded assistance of counsel his . . . petition 

would not have been summarily denied without an evidentiary 

hearing.” ’ [Citation.]” (Id. at p. 974.) 
9

Under Lewis, the trial court erred in failing to appoint 

counsel to represent Maldonado. This error, however, was 

harmless. Because Maldonado is ineligible for relief as a matter 

of law, appointed counsel would not have assisted him. 

DISPOSITION

The order denying Rene Maldonado’s petition for 

resentencing is affirmed. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.